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The Perils of Popularity: David Josiah Brewer and
the Politics of Judicial Reputation
J. Gordon Hylton
Marquette University Law School, [email protected]
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J. Gordon Hylton, The Perils of Popularity: David Josiah Brewer and the Politics of Judicial
Reputation, 62 Vand. L. Rev. 567 (2009)
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The Perils of Popularity: David Josiah
Brewer and the Politics of Judicial
Reputation
J. Gordon Hylton∗
I.
II.
III.
IV.
V.
THE PEOPLE’S SUPREME COURT JUSTICE ............................ 569
THE ARCH-CONSERVATIVE DEFENDER OF PROPERTY .......... 573
BREWER AND FULLER COURT REVISIONISM ........................ 576
DAVID BREWER REVISIONISM .............................................. 577
BREWER’S APPROACH TO DECIDING CASES ......................... 583
David Brewer is hardly a household name in the contemporary
legal academy. Most American professors of constitutional law would
have a hard time placing his nearly twenty-one years of service on the
U.S. Supreme Court, though most would be savvy enough to guess
“Lochner era.” He is probably the least well-known of all the Justices
whose careers are examined in this Symposium. (Brewer’s longtime
colleague Rufus Peckham is probably his chief contender for this title.)
For the record, Brewer sat on the Supreme Court from January of
1890 until his death in March of 1910.1
In his own era, Brewer was anything but obscure. He played an
important, and sometimes pivotal, role on the nation’s highest court in
the 1890s and the first decade of the twentieth century.2 During his
∗
Professor of Law, Marquette University. Visiting Professor of Law, University of
Virginia. The author wishes to express his special thanks to Jim Ely, Linda Przybyszewski, and
Sandy Olken for their comments on an earlier version of this Essay.
1.
Melville Westin Fuller was the Chief Justice during Brewer’s entire tenure on the
Supreme Court. Fuller assumed the office of Chief Justice in 1888 and served until his death in
1910, which came a few months after Brewer’s death. For discussion of the Fuller Court
generally, see JAMES W. ELY, THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888–1910 (1995),
and JOHN E. SEMONCHE, CHARTING THE FUTURE: THE SUPREME COURT RESPONDS TO A CHANGING
SOCIETY, 1890–1920 (1978).
2.
See generally ELY, supra note 1; SEMONCHE, supra note 1. For biographical information
on David Brewer, see generally MICHAEL J. BRODHEAD, DAVID J. BREWER: THE LIFE OF A
SUPREME COURT JUSTICE, 1837–1910 (1994). The most important sources of primary materials
pertaining to Brewer are the Brewer Family Papers at Yale University and Brewer’s papers in
the Library of Congress. For other primary sources, see the bibliography in the Brodhead
biography. Id. at 239–52.
567
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years on the Court, he authored 540 majority opinions, a total that
had been exceeded by only five Justices at the time of his death in
1910.3 He also cast what turned out to be the deciding vote in a
number of landmark cases, including the Income Tax Case4 (1895), the
Northern Securities antitrust case5 (1904), and Lochner v. New York6
(1905). Moreover, he established himself as the leading dissenter on
the Fuller Court, dissenting even more frequently than “The Great
Dissenter” John Marshall Harlan.7 During his time on the Court, he
was also unquestionably the Justice most familiar to the American
public.8
Given Brewer’s long service on the Supreme Court and his
unquestioned prominence in his own time, it is somewhat surprising
that the Kansan has been so thoroughly “neglected” by constitutional
scholars and Supreme Court historians. A 1938 Princeton political
science dissertation9 and a relatively brief biography published in
1994 by Southern Illinois University Press10 are the only full-length
studies of Brewer. While there are many articles in law reviews and
state historical journals that touch on various aspects of his career
and constitutional views, none has convinced the community of
constitutional scholars that either his life or his set of ideas is worthy
of special attention.11
3.
The five Justices who authored a greater number of majority opinions by the time of
Brewer’s death were Justices Samuel Miller, Stephen Field, Morrison Waite, John Marshall Harlan,
and Melville W. Fuller. ALBERT P. BLAUSTEIN & ROY M. MERSKY, THE FIRST ONE HUNDRED
JUSTICES: STATISTICAL STUDIES ON THE SUPREME COURT OF THE UNITED STATES 142–44 (1978).
Waite and Fuller were Chief Justices and Miller, Field, and Harlan would appear on almost every
list of “great” Justices. As for the exact number of opinions written by Brewer, there is some
disagreement. The author’s count of Brewer’s opinions, based on a review of all opinions handed
down by the Supreme Court during David Brewer’s tenure, is 540 majority opinions, 10 concurring
opinions, 55 dissenting opinions, and 20 statements. According to a different tabulation, Brewer
authored 607 opinions which included 533 majority opinions, 8 concurring opinions, 57 dissenting
opinions, and 9 statements or other opinions. Id. at 144. A search of the LexisNexis Supreme Court
cases database yields totals of 539 majority opinions, 10 concurring opinions, and 66 dissenting
opinions.
4.
Pollack v. Farmers’ Loan & Trust Co, 158 U.S. 601 (1895).
5.
N. Sec. Co. v. United States, 193 U.S. 197 (1904).
6.
198 U.S. 45 (1905).
7.
According to the statistics compiled in BLAUSTEIN & MERSKY, supra note 3, at 148,
Brewer dissented an average of 11.3 times per term during his years on the Court. Harlan
averaged 11.1 dissents per term. Of the other Justices on the Fuller Court only Peckham (10.9)
and White (10.7) averaged more than 10 dissents per term. Id.
8.
See discussion infra notes 14–34.
9.
Lynford A. Lardner, The Constitutional Doctrines of Justice David Josiah Brewer (1938)
(unpublished Ph.D. dissertation, Princeton University) (on file with the Vanderbilt Law Review).
10. BRODHEAD, supra note 2.
11. Published articles focusing on Brewer’s role on the Court were particularly scarce before
1990. The literature, such as it was, included Francis Bergan, Mr. Justice Brewer: Perspective of a
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I. THE PEOPLE’S SUPREME COURT JUSTICE
Brewer’s appeal to his contemporaries was enhanced by his
compelling life story.12 He was born in 1837 in Smyrna, Asia Minor,
where his New England missionary parents, the Rev. Josiah Brewer
and his wife Emilia Field Brewer, operated a missionary school.
(Living with the Brewers in Smyrna was Mrs. Brewer’s thirteen-yearold brother Stephen Field, David Brewer’s uncle and future colleague
on the U.S. Supreme Court.) In 1838, the Brewers returned to New
England, where the elder Brewer held a variety of educational and
ministerial positions. David was educated first at Wesleyan College
and then at Yale, where he was greatly influenced by the political
scientist and protestant minister Theodore Dwight Woolsey.13 At Yale
he was also a classmate of his future Supreme Court colleague Henry
Billings Brown.
After graduating from Yale in 1856, Brewer spent one year
studying law in the office of his uncle David Dudley Field in New York
City and then a second year at the Albany Law School, from which he
graduated in 1858. During this time, Brewer—who shared his
abolitionist father’s belief in reform—became radicalized by the debate
over slavery and particularly by the U.S. Supreme Court’s Dred Scott
decision, which Brewer viewed as reprehensible. Following his
graduation from Albany, he moved—at the height of the battle over
slavery in Kansas—to Kansas City, Missouri, where he contemplated
starting a law practice. After an unsuccessful few months practicing
law, he ventured to Colorado in search of gold, only to return emptyCentury, 25 ALB. L. REV. 191 (1961); D. Stanley Eitzen, David J. Brewer, 1837–1910: A Kansan on
the United States Supreme Court, 12 EMPORIA ST. RES. STUD. 1 (1964); Owen M. Fiss, David J.
Brewer: The Judge as Missionary, in THE FIELDS AND THE LAW 53 (1986); and Ralph E. Gamer,
Justice Brewer and Substantive Due Process: A Conservative Court Revisited, 18 VAND. L. REV. 615
(1965).
Although the flow still resembles a trickle more than a torrent, there has been a slight
increase in the number of scholarly articles about Brewer since 1990. These include: Steven K.
Green, Justice David Josiah Brewer and the “Christian Nation” Maxim, 63 ALB. L. REV. 427 (1999);
J. Gordon Hylton, David Josiah Brewer: A Conservative Justice Reconsidered, 94 J. SUP. CT. HIST. 45
(1994) [hereinafter Hylton, Conservative Justice]; J. Gordon Hylton, David Josiah Brewer and the
Christian Constitution, 81 MARQ. L. REV. 417 (1998) [hereinafter Hylton, Christian Constitution]; J.
Gordon Hylton, The Judge Who Abstained in Plessy v. Ferguson: Justice David Brewer and the
Problem of Race, 61 MISS. L.J. 315 (1991) [hereinafter Hylton, Judge Who Abstained]; Linda
Przybyszewski, Judicial Conservatism and Protestant Faith: The Case of Justice David J.
Brewer, 91 J. AM. HIST. 471, 476 (2004); and William M. Wiecek, Justice David J. Brewer and
“the Constitution in Exile,” 33 J. SUP. CT. HIST. 170 (2008).
12. The following biographical sketch is based upon BRODHEAD, supra note 2, and the
Hylton articles, supra note 11.
13. Woolsey was also president of Yale from 1846 to 1871. For Woolsey’s influence on
Brewer, see Hylton, Christian Constitution, supra note 11, at 420–22.
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handed to Leavenworth, Kansas, in 1859, where he would remain
until his appointment to the U.S. Supreme Court in 1889.
In Leavenworth, Brewer practiced law (though not very
successfully) and held a variety of public positions, including
commissioner for the local federal circuit court, superintendent of
schools, judge of the county probate court, and later state district court
judge. In 1870, he was elected to the Kansas Supreme Court, on which
he served until he was appointed judge of the U.S. Eighth Circuit
Court in 1884. In 1889, President Benjamin Harrison named Brewer
to the U.S. Supreme Court to replace the recently deceased Justice
Stanley Matthews. The U.S. Senate confirmed his appointment that
December.
Brewer’s appointment to the Supreme Court made him a
national figure, and he never hesitated to take advantage of the
opportunities offered by his new position. As a state and federal judge
in Kansas, he had spoken regularly in public and published his views
on a variety of topics in a wide range of publications. After 1890, he
moved these activities to a national stage, and it was his off-the-bench
opinions rather than his judicial decisions that caught the attention of
the American public.
When Brewer died suddenly at age seventy-two on March 27,
1910, obituaries in the nation’s leading newspapers not only
remembered him as a great jurist but also celebrated the role that he
had played in making the Supreme Court accessible to the general
public. As the New York Times put it:
Of all the justices of the Supreme Court of the United States[,] David J. Brewer was the
best known to the people. They saw more of him. It was his habit, upon occasion, to put
aside the robe of the Justice, the manner and the speech of the bench, and to address his
fellow-citizens from lecture platforms upon matters that concerned them all.14
According to the Chicago Tribune, “Justice Brewer’s death will be a
big loss to the public in other ways than as a member of the bench. He
was the only member of the bench who freely expressed his opinion on
large public questions.”15 That same newspaper also noted that
Brewer “was the one member of the Supreme [C]ourt who was in
almost constant demand as a lecturer and after-dinner speaker.”16
The Washington Post was particularly effusive, proclaiming
that during his years on the Supreme Court, Brewer
had become the embodiment of the ideals cherished by the people in respect to those
chosen to sit in the temple of justice. His public monument is his own pure fame as a
14. Justice Brewer, N.Y. TIMES, Mar. 30, 1910, at 10.
15. Justice Brewer Dies Suddenly, CHI. DAILY TRIB., Mar. 29, 1910, at 1.
16. Id. at 6.
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judge. . . . He had become like one of the fathers of the republic, whose voice was the
voice of wisdom, understanding, and patriotism.17
Even a progressive journal like Outlook, which was critical of many of
Brewer’s views on law and politics, acknowledged his prominence and
popularity. It described Brewer as “one of the most widely known and
popular of all the judges who have ever sat upon the Federal Supreme
Court bench,” and it noted:
It is probable that among the names of the Supreme Court Justices whom most people
would recall there would be found his. This was largely because more than any other
Supreme Court Justice in recent years Justice Brewer appeared before popular
audiences and spoke his mind freely on public questions.18
The Virginia Law Register, a law journal, described the late Justice as
a man who “mingled with the people and addressed his
countrymen . . . upon matters concerning the general welfare” and
who “did not hesitate to express vigorous opinion upon all the great
questions of the day.”19
The Proquest Historical Newspapers database confirms
Brewer’s visibility to the public. A search for stories with references to
the Supreme Court Justices of the Fuller Court era reveals that the
three Justices whose names appeared most frequently in the popular
press were Chief Justice Melville Fuller, Associate Justice John
Marshall Harlan, and David Brewer. Although Fuller was the Chief
Justice and Harlan was the Court’s senior member for most of
Brewer’s tenure, it is Brewer’s name that appears most frequently. In
the twenty-one-year period between January 1, 1890, and January 1,
1911, there are 2,024 articles that mention Chief Justice Fuller, 2,634
that mention Justice Harlan, and 3,038 that mention Justice Brewer.
While the stories that mention Fuller and Harlan almost always do so
in the context of the Supreme Court itself, the Brewer stories
frequently discuss him in the context of events (usually speaking
engagements) that have little direct connection to the Court.20
As his eulogists acknowledged, Brewer’s fame was largely the
product of his love of public speaking and his willingness to go almost
anywhere to address an audience. He spoke to bar associations, to
missionary groups, to churches, to life insurance agents, at public
health conferences, at conferences on international arbitration, at
graduation ceremonies of prestigious and not-so-prestigious colleges,
17. Death of Justice Brewer, WASH. POST, Mar. 29, 1910, at 6.
18. Mr. Justice Brewer, 94 OUTLOOK 785, 785 (1910).
19. Mr. Justice Brewer, 16 VA. L. REG. 65, 65 (1910).
20. This is based on the version of Proquest available through the University of Virginia
Library in March of 2008.
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at all-black colleges, and at football dinners. He was wonderfully
democratic in that regard. When the Supreme Court recessed, Brewer
usually could be found heading for the Washington train station to
travel to yet another destination to deliver a public address. His
papers contain almost two hundred manuscript addresses, but
contemporary newspaper accounts suggest that his number of public
addresses far exceeded that total.21
Brewer also regularly contributed articles—often very thinly
reworked versions of his public addresses—to the popular and
religious presses of his day, and many of his other addresses were
published in pamphlets or expanded to book form.22 One could read
about Brewer’s views on lynching in Leslie’s Weekly;23 on juries in
International Monthly;24 on African-American education in the
Southern Workman;25 on individual liberty, organized wealth and the
judiciary, and the right to appeal in The Independent;26 on the
religious life of judges in Outlook;27 on the prospects for international
peace in Christian Endeavor World;28 on women’s suffrage in Ladies
World;29 on the importance of the YMCA in Intercollegian;30 on the
legality of Jesus’s conviction and execution in Sunday School Times;31
and on the Green Mountain State in The Vermonter.32 In addition, he
edited a ten-volume series entitled The World’s Best Essays; he edited
a second ten-volume series, The World’s Best Orations; and he coauthored a short treatise on international law with Supreme Court
Reporter Charles Henry Butler.33 Historian Linda Przybyszewski has
21. Brewer Family Papers (on file with the Yale University Sterling Memorial Library);
Papers of David J. Brewer (on file with the Library of Congress Manuscript Division).
22. For a nearly complete list of Brewer’s published articles and books, see BRODHEAD,
supra note 2, at 241–43, 247–49.
23. David J. Brewer, Plain Words on the Crime of Lynching, 97 LESLIE’S WKLY. 182 (1903).
24. David J. Brewer, The Jury, 5 INT’L MONTHLY 1, 1–9 (1902).
25. David J. Brewer, Justice Brewer’s Address, 35 S. WORKMAN 359, 359–61 (1906).
26. David J. Brewer, The Liberty of Each Individual, 45 INDEP. 2 (1903); David J. Brewer,
Organized Wealth and the Judiciary, 57 INDEP. 301 (1904); David J. Brewer, The Right of Appeal,
55 INDEP. 2547 (1903).
27. David J. Brewer, The Religion of a Jurist, 80 OUTLOOK 533, 533–36 (1905).
28. David J. Brewer, A Second Hague Conference: What May Be Expected From It, 19
CHRISTIAN ENDEAVOR WORLD 787, 787–88 (1905).
29. David J. Brewer, Woman Suffrage: Its Present Position and Its Future, 30 LADIES’
WORLD 6, 6, 29 (1909).
30. David J. Brewer, The Young Men’s Christian Association and American Solidarity, 27
INTERCOLLEGIAN 101, 101–03 (1905).
31. David J. Brewer, Were Christ’s Trial and Death Legal?, 1906 SUNDAY SCH. TIMES 665,
665–66.
32. David J. Brewer, The Green Mountain State, 1 VERMONTER 125, 125–26 (1896).
33. DAVID J. BREWER & CHARLES HENRY BUTLER, INTERNATIONAL LAW: A TREATISE (1906);
THE WORLD’S BEST ESSAYS: FROM THE EARLIEST PERIOD TO THE PRESENT TIME (David J. Brewer
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described Brewer as “probably the most widely read jurist in the
United States at the turn of the century.”34
In addition to his public speaking and writing, Brewer served
in a variety of high-profile public positions during his tenure on the
Supreme Court. In 1895, he temporarily took leave of his Supreme
Court duties to serve as president of the Venezuela-British Guiana
Border Commission, and he was a regular participant at the Lake
Mohonk, New York, conferences on world peace. In 1904, he served as
president of the Universal Congress of Lawyers and Jurists, held in
conjunction with the St. Louis World’s Fair, and in 1907, he was one of
the founders of the American Society of International Law. A longtime
officer of the American Home Missionary Association, Brewer was also
an active supporter of the Associated Charities of Washington, D.C. In
addition, he was actively involved with the legal profession, and he
served as a member of the committee that drafted the American Bar
Association’s 1908 Canons of Ethics. Throughout his years in
Washington, Brewer was a part-time professor of constitutional and
international law at the Columbian Law School (now the law school of
George Washington University). Although part of Brewer’s motivation
for his off-the-bench career was financial—he had no significant
financial assets or income other than his judge’s salary—Brewer
derived great satisfaction from the public attention and admiration
that he received for his extrajudicial activities.
II. THE ARCH-CONSERVATIVE DEFENDER OF PROPERTY
Not everyone was enamored with Brewer’s penchant for public
appearances. His Supreme Court colleague Oliver Wendell Holmes,
while insisting that he liked Brewer personally, labeled him an enfant
terrible in a letter to his English friend Frederick Pollock. In the
letter, he also mocked Brewer’s “itch for public speaking.”35 Edwin
Corwin, who began his long scholarly career while Brewer was still on
the bench, later noted that “Justice Brewer was inordinately fond of the
lecture platform, doing his best to restore the old Federalist conception
of the judges as moral mentors of the people.”36 During his final years on
ed., 1900); THE WORLD’S BEST ORATIONS: FROM THE EARLIEST PERIOD TO THE PRESENT TIME
(David J. Brewer ed., 1899).
34. Przybyszewski, supra note 11, at 476.
35. Letter from Oliver Wendell Holmes to Frederick Pollock (Apr. 1, 1910), in 1 HOLMESPOLLOCK LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND SIR FREDERICK
POLLOCK, 1874–1932, at 160, 160 (Mark DeWolfe Howe ed., 1941).
36. EDWIN S. CORWIN, COURT OVER CONSTITUTION: A STUDY OF JUDICIAL REVIEW AS AN
INSTRUMENT OF POPULAR GOVERNMENT 198 n.41 (1938).
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the Court, Brewer’s public remarks became increasingly political and
often were targeted at progressive initiatives. President Theodore
Roosevelt in particular was the target of harsh criticism from Brewer.
Roosevelt, in turn, detested Brewer and privately described him as a
“menace to the welfare of the Nation”37 and as a judge who had “a
sweetbread for a brain.”38 To Roosevelt, Brewer was “one of the
corporation judges whose presence on the bench has been a source of
grave discredit and weakness to it.”39
If one looks at the trajectory of Brewer’s post-1910 reputation,
a distinct pattern emerges. For two decades after his death, public
opinion of Brewer was divided. Some students of the Court, including
liberals like Felix Frankfurter and Jerome Frank, remembered David
Brewer as an important and influential Justice.40 However, following
the lead of Theodore Roosevelt, other progressive commentators
shortly after Brewer’s death began to describe him as an archconservative judge who placed the interests of American corporate
plutocrats ahead of those of the general public. He was derided as an
apostle of laissez-faire, a social Darwinist, an individual woefully out of
touch with the social realities of his day, and a political reactionary
whose true agenda was the advancement of the interests of large
business enterprises.
In his history of the Supreme Court published shortly after
Brewer’s death, the muckraking journalist Gustavus Myers described
Brewer as a Justice who “indoctrinated law in accordance with the
demands of capitalist interests,”41 while the progressive journal Outlook
somewhat more charitably described him as one who “followed the
standards of an individualistic age from which [this magazine] believes
the country is emerging.”42 Even Henry Billings Brown, Brewer’s Yale
classmate and colleague on the Supreme Court (and hardly a judicial
37. Letter from Theodore Roosevelt to Henry Lewis Stimson (Feb. 5, 1912), in 7 THE
LETTERS OF THEODORE ROOSEVELT 494, 495 (Elting E. Morrison ed., 1954) [hereinafter LETTERS
OF THEODORE ROOSEVELT].
38. Letter from Oliver Wendell Holmes to Harold J. Laski (July 27, 1930), in 2 HOLMESLASKI LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND HAROLD J. LASKI, 1916–
1935, at 1268, 1270 (Mark DeWolfe Howe ed., 1953).
39. Letter from Theodore Roosevelt to William Allen White (Nov. 26, 1907), in 5 LETTERS OF
THEODORE ROOSEVELT, supra note 37, at 855, 855.
40. Felix Frankfurter, The Supreme Court in the Mirror of Justices, 105 U. PA. L. REV. 788
(1957). For Frankfurter’s view of Brewer, see HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS: A
POLITICAL HISTORY OF THE APPOINTMENTS TO THE SUPREME COURT 10–11 (2d ed. 1985)
(describing Frankfurter’s list of “great” Supreme Court Justices).
41. GUSTAVUS MYERS, HISTORY OF THE SUPREME COURT OF THE UNITED STATES 739 (1918).
42. Mr. Justice Brewer, supra note 18, at 786.
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radical), identified him after his death as one who embraced “the
conservative views . . . regarding the rights of property.”43
After the 1930s, favorable views of Brewer almost disappeared.
He and most of his Fuller Court colleagues were linked with the Four
Horsemen of the 1920s as examples of Justices who participated in the
corporate takeover of the American judiciary. Brewer was described
variously as the “leader of the ultraconservative economic laissez-faire
advocates on the Court”;44 one of “the tough-minded twins of ultraconservatism”;45 the “William O. Douglas of the Right”;46 a “firm believer
in laissez faire”;47 “that old laissez-faire advocate”;48 a “vigorous proponent of judicial sanctions for laissez-faire conservatism”;49 a judge who
possessed a “conservative commitment to a rigidly circumscribed concept
of government regulatory authority”;50 one who stood in “staunch
defense of the rights of liberty and property”;51 and an individual whose
“thought turned in upon legal principles instead of expanding outward
to an examination of the economic and social conditions to which law is
intended to apply.”52
Reflecting the new consensus, historian Arnold Paul wrote of
Brewer in the mid-1960s:
Brewer held to a strictly conservative, sometimes reactionary, position on the Court,
opposing firmly the expansion of government regulatory power, state or federal. [He
was] an outspoken and doctrinaire conservative who made little pretense of “judicial
self-restraint” and few compromises to Court consensus. . . . [He was] dogmatic and
ultraconservative in a wide spectrum of social, political, and judicial matters. What
Brewer represented was both an older kind of conservatism, manifested by such themes
as a Puritan stress on obligation and character, an acceptance of social stratification (in
conjunction with an insistence on social order), and a belief in noblesse oblige—and a
newer kind more representative of his contemporary milieu, highly materialistic and
property-conscious, elitist in the Social Darwinian sense, and fearful of the social
challenges accompanying the growth of industrialism.53
43. MEMOIR OF HENRY BILLINGS BROWN: LATE JUSTICE OF THE SUPREME COURT OF THE UNITED
STATES 32 (Charles A. Kent ed., 1915).
44. ABRAHAM, supra note 40, at 147–48.
45. FRED RODELL, NINE MEN: A POLITICAL HISTORY OF THE SUPREME COURT FROM 1790 TO
1955, at 187 (1955). The other “twin” was Rufus Peckham. Id.
46. ALAN F. WESTIN, AN AUTOBIOGRAPHY OF THE SUPREME COURT 24 (1963).
47. SIDNEY FINE, LAISSEZ FAIRE AND THE GENERAL-WELFARE STATE 136 (1956).
48. LOREN P. BETH, THE DEVELOPMENT OF THE AMERICAN CONSTITUTION, 1877–1917, at 185
(1971).
49. 5 LETTERS OF THEODORE ROOSEVELT, supra note 37, at 397 n.1.
50. WILLIAM F. SWINDLER, COURT AND CONSTITUTION IN THE TWENTIETH CENTURY: THE OLD
LEGALITY, 1889–1932, at 93 (1969).
51. CARL BRENT SWISHER, AMERICAN CONSTITUTIONAL DEVELOPMENT 563 (1943).
52. Lardner, supra note 9, at 221.
53. Arnold M. Paul, David J. Brewer, in 2 THE JUSTICES OF THE UNITED STATES SUPREME
COURT, 1789–1978, at 1515, 1520 (Leon Friedman & Fred L. Israel eds., 1980); see also ARNOLD M.
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Until the late 1970s, this view of Brewer and his Fuller Court colleagues
held sway among constitutional scholars and historians. At that point in
history, one could have made the argument that Brewer was not worthy
of attention because his ideas were so corrupt and outdated that little
could be gained by studying his career.
III. BREWER AND FULLER COURT REVISIONISM
The scholarship of the past three decades convincingly has
demolished the view of the Fuller Court as little more than a water
carrier for corporate America. This literature has emphasized that the
Justices of the Waite and Fuller Courts were part of a constitutional
tradition rooted in the liberalism of antebellum America and characterized by hostility to government-sanctioned monopolies and a belief in
the sanctity of free labor.54 Initially, this reevaluation did little to
rehabilitate the reputation of David Brewer. What resulted was a new
consensus that, while the Fuller Court as a whole was not nearly as
committed to the protection of property and the principles of laissez-faire
as its progressive critics had claimed, such charges were fair when
applied to David Brewer (and usually to Rufus Peckham as well).
Consequently, during the 1980s and the early 1990s, even while
scholarly attitudes toward the Fuller Court as a whole softened, Brewer
continued to be described as one who stood in the “forefront of the
PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH, 1887–1895, at
70–72 (1960) (describing Brewer’s 1891 Yale commencement address, Protection to Private Property
from Public Attack).
54. See generally ELY, supra note 1. “Fuller Court revisionism” began in the late 1970s with the
work of Charles McCurdy and John Semonche playing leading roles. See Charles W. McCurdy,
Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of LaissezFaire Constitutionalism, 1863–1897, 61 J. AM. HIST. 970 (1975); Charles W. McCurdy, The Knight
Sugar Decision of 1895 and the Modernization of American Corporate Law, 1869–1903, 53 BUS. HIST.
REV. 302 (1979); Charles W. McCurdy, The Roots of “Liberty of Contract” Reconsidered: Major
Premises in the Law of Employment, 1867–1937, 1984 Y.B. SUP. CT. HIST. SOC’Y 20; see also
SEMONCHE, supra note 1.
For later examples of the literature that led to this reevaluation of the Fuller Court, see
HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA
POLICE POWERS JURISPRUDENCE 1–18 (1993); HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN
LAW, 1836–1937 (1991); WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL
PRINCIPLE TO JUDICIAL DOCTRINE (1988); Michael Les Benedict, Laissez-Faire and Liberty: A ReEvaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 2 LAW & HIST. REV.
293 (1985); James W. Ely, Jr., Judicial Liberalism in the Gilded Age: Appraising John Marshall
Harlan, 21 REV. AM. HIST. 57, 57–62 (1993); Stephen A. Siegel, Lochner Era Jurisprudence and
the American Constitutional Tradition, 70 N.C. L. REV. 1 (1991); and Melvin I. Urofsky, State
Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. AM. HIST. 63
(1985). For a discussion of the historiography of the Fuller Court prior to 1975, see Mary
Cornelia Porter, That Commerce Shall Be Free: A New Look at the Old Laissez-Faire Court, 1976
SUP. CT. REV. 135, 135–59.
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Court’s assault on social legislation,”55 a judge who “forged conservative
socioeconomic beliefs into constitutional doctrine” and “unabashedly
relied on judicial power to protect private property rights from the
supposed incursions of state and federal legislatures,”56 and one whose
“overriding purpose was to limit and structure state interventions into
the economy and to affirm the idea of limited government.”57 Scholars
labeled Brewer as a “doctrinaire conservative” who was “the most
formalist member of the Court at the time”58 and “one of the most
conservative members of a notoriously conservative bench . . . obsessed
with the importance of private property to the preservation of a free and
just society.”59 By advancing a more moderate interpretation of the
Fuller Court as a body, some revisionist historians actually made
Brewer seem even more of a reactionary figure than before.
Given the seeming uniformity of “liberal” scholarly opinion
regarding Brewer’s conservatism, a “David Brewer revival” might have
been expected with the rise of conservative constitutional theories in the
1980s. Yet Brewer’s name went largely unmentioned by the advocates of
Reaganite constitutionalism. Neither Ronald Reagan nor anyone else in
the 1980s called for the appointment of “more David Josiah Brewers” to
the Supreme Court.60
IV. DAVID BREWER REVISIONISM
In his 1978 study, Charting the Future: The Supreme Court
Responds to a Changing Society, 1888-1920, historian John Semonche
argued that Brewer’s record on the Court showed that he was more
pragmatic than ideological and that his reputation as an “arch
55. DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE SECOND CENTURY,
1888–1986, at 82 (1990).
56. Kermit L. Hall, Brewer, David J. (1837–1910), in 1 ENCYCLOPEDIA OF THE AMERICAN
CONSTITUTION 240, 240 (Leonard W. Levy & Kenneth L. Karst eds., 2d ed. 2000).
57. Fiss, supra note 11, at 58.
58. WILLIAM M. WIECEK, LIBERTY UNDER LAW: THE SUPREME COURT IN AMERICAN LIFE 121,
126 (1988).
59. Stephen A. Siegel, Understanding the Lochner Era: Lessons from the Controversy over
Railroad and Utility Rate Regulation, 70 VA. L. REV. 187, 215–16 (1984).
60. This is difficult to document, but in the LexisNexis newspaper/news magazine database,
there is only one story published before January 1, 1993 that mentions both Ronald Reagan and
David Brewer and that is a 1984 Time magazine story about religion in schools that mentions in
passing Brewer’s opinion in the Church of the Holy Trinity v. United States, 143 U.S. 457, 471
(1892) (declaring the United States to be a Christian nation). This is also apparently the only
mention of Brewer in the database prior to January 1993. While the pre-1993 LexisNexis
database is much less extensive than the modern version, there are in excess of 3000 stories that
include the terms “Reagan,” “Supreme Court” and “appointment.” (The database will not return
a total for the number of qualifying sources if the number is larger than 3000.)
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conservative” was in need of reconsideration. At the time, very few
historians and legal scholars picked up on that suggestion.61 However, in
the 1990s a small number of scholars demonstrated that Brewer’s
overall record on the Court was more moderate than his critics had
maintained. Assertions of Brewer’s extremism usually had been based
on specific references to his intemperate language in a small number of
opinions and public addresses and not on his overall record on the
Supreme Court.62
It is true that, at the time of his appointment to the Supreme
Court, Brewer already had a reputation as a defender of property
rights. He angered the prohibitionists in his own state—even though
Brewer himself supported prohibition—by ruling that the state had to
compensate the owners of breweries and distilleries that were
rendered virtually worthless by the enactment of the prohibition
amendment to the Kansas Constitution in 1880.63 Similarly, his
nomination to the Supreme Court had been opposed by the Kansas
Grange, which viewed his judicial decisions as insufficiently
sympathetic to the cause of railroad rate regulation. Brewer accepted
the legitimacy of rate regulation but insisted that rates had to be set
high enough for the railroad to earn a reasonable return on its
investment. He also believed that courts properly could determine the
reasonableness of rates. Some southern senators also opposed Brewer
because they believed that he was too sympathetic to AfricanAmericans.64
A handful of strident public addresses delivered shortly after
his appointment to the Court enhanced Brewer’s reputation as a
defender of property rights. Particularly provocative were “The
Protection of Property from Public Attack” (delivered at his alma
mater Yale and published as a magazine article and as a pamphlet)
and “The Movement toward Coercion” (an address before the New
York State Bar Association in 1893, which also was published as a
61. SEMONCHE, supra note 1, at 244–45.
62. The principle works of “Brewer revisionism” since 1978 are BRODHEAD, supra note 2;
EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION 38–63, 319–20 (2000),
even though Brewer is a relatively minor character in the overall work; and Hylton, Conservative
Justice, supra note 11.
63. Kansas v. Walruff, 26 F. 178, 199 (C.C.D. Kan. 1886). This decision was effectively
overruled by the United States Supreme Court in Mugler v. Kansas, 123 U.S. 623, 668–69 (1887),
which was decided while Brewer was still a Judge of the Eighth Circuit Court of Appeals.
64. For Brewer’s complicated relationship to the question of African-American rights, see
Hylton, Judge Who Abstained, supra note 11. On Southern opposition to his appointment to the
Supreme Court from within his circuit because of his racial views, see BRODHEAD, supra note 2,
at 75.
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pamphlet).65 Moreover, during his time on the Supreme Court, Brewer
was found in the majority of what used to be thought of as the most
“notorious” pro-property decisions of the Fuller Court: Chicago,
Milwaukee & St. Paul Railway Co. v. Minnesota (1890);66 Pollack v.
Farmer’s Loan & Trust (the income tax case, 1895);67 United States v.
E. C. Knight Co. (1895);68 In re Debs (Brewer’s opinion, 1895);69
Allgeyer v. Louisiana (1897);70 Smyth v. Ames (affirming a lower court
opinion by Brewer, 1896);71 Lochner v. New York (1905);72 Adair v.
United States (1908);73 and Berea College v. Kentucky (1908).74 In
addition, Brewer dissented in several cases in which the Court voted
to uphold regulatory legislation in the tradition of Munn v. Illinois.75
The most famous example is the grain elevator regulation case Budd
v. New York,76 in which Brewer bitterly proclaimed that “[t]he
paternal theory of government is to me odious” and predicted that
such decisions were making the vision of Edward Bellamy’s Looking
Backward (which Brewer seemingly read as a dystopian work) “nearer
than a dream.”77
However, a closer examination of Brewer’s judicial record and
his off-the-bench writings reveals the inadequacy of the various views
of Brewer as a social Darwinist, a corporate henchman, or some sort of
extreme economic libertarian. More thorough studies of Brewer’s actual
voting patterns on the Court demonstrate that he was not nearly the
doctrinaire opponent of the police power that his critics have made him
out to be; nor was he the unrestrained defender of corporate interests
that many assumed.78
65. DAVID JOSIAH BREWER, THE MOVEMENT OF COERCION (1893); David Josiah Brewer,
Protection of Private Property from Public Attack, 55 NEW ENGLANDER & YALE REV. 97 (1891).
66. 134 U.S. 418 (1890).
67. 158 U.S. 601 (1895).
68. 156 U.S. 1 (1895).
69. 158 U.S. 564 (1895).
70. 165 U.S. 578 (1897).
71. 169 U.S. 466 (1898). The lower court opinion was Ames v. Union Pac. R.R. Co., 64 F. 165
(C.C.D. Neb. 1894).
72. 198 U.S. 45 (1905).
73. 208 U.S. 161 (1908).
74. 211 U.S. 45 (1908). Brewer did not participate in the case of Plessy v. Ferguson, 163 U.S.
537, 552 (1896), in which the Court upheld the doctrine of separate but equal. Hylton, Judge
Who Abstained, supra note 11, at 341–44.
75. 94 U.S. 113, 135 (1878).
76. 143 U.S. 517, 548–52 (1892).
77. Id. at 551.
78. Brewer’s voting record is analyzed in detail in Hylton, Conservative Justice, supra note 11,
at 48–54.
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Frequently, Brewer’s bark proved to be worse than his bite.
While Brewer supported judicial review of the reasonableness of state
railroad rates in Reagan v. Farmers’ Loan & Trust Co. (1894)79 and
Smyth v. Ames (1898),80 in nine subsequent rate cases that came
before the U.S. Supreme Court, Brewer voted to uphold challenged
state regulatory schedules eight times.81 When Brewer came to the
Supreme Court in 1890, he was committed to overturning Munn v.
Illinois,82 the Supreme Court’s 1877 decision that upheld the authority
of states to regulate rates charged by certain unincorporated
businesses that were affected with a public interest. However, after
his colleagues rebuffed his efforts to overturn Munn in Budd v. New
York (1892)83 and Brass v. North Dakota (1894),84 he gave up and
accepted the legitimacy of the earlier decision.85
For all his rhetoric regarding the sanctity of property rights,
Brewer was surprisingly reluctant to use the Fourteenth and Fifth
Amendments as barriers to state regulation of property. Only twice in
his twenty years on the Supreme Court did he file a written dissent in a
case in which the majority determined that no taking of property had occurred.86 On the other hand, he often could be found defending the
state’s action when other Justices felt compensation was necessary. In
regard to Brewer’s approach to takings cases, historian John Semonche,
after examining Brewer’s opinions from his entire stint on the Supreme
Court, wrote: “Based upon such opinions Brewer must be seen as a
79. 154 U.S. 362, 393–94 (1894).
80. 169 U.S. 466, 545–46 (1898). Brewer authored the Court’s opinion in Reagan and the
lower circuit court opinion that Smyth upheld.
81. Brewer voted to uphold challenged rate schedules in several cases. R.R. Comm’n of La. v.
Cumberland Tel. & Tel. Co., 212 U.S. 414, 428 (1909); Willcox v. Consol. Gas Co., 212 U.S. 19, 54
(1909); Interstate Consol. St. Ry. Co. v. Massachusetts, 207 U.S. 79, 88 (1907); Ala. & Vicksburg Ry.
Co. v. Miss. R.R. Comm’n, 203 U.S. 496, 500 (1906) (opinion of Brewer, J.); Seaboard Air Line Ry. v.
Florida, 203 U.S. 261, 269–70 (1906) (opinion of Brewer, J.); Minneapolis & St. Louis R.R. Co. v.
Minnesota, 186 U.S. 257, 268–69 (1902); Louisville & Nashville R.R. Co. v. Kentucky, 183 U.S. 503,
505 (1902); Chi., Milwaukee & St. Paul Ry. Co. v. Tompkins, 176 U.S. 167, 174 (1900) (opinion of
Brewer, J.). Only in Ex parte Young, 209 U.S. 123, 147 (1908), did he side with the party challenging
the rate schedule.
82. 94 U.S. 113, 130 (1877).
83. 143 U.S. 517, 548–52 (1892).
84. 153 U.S. 391, 405–10 (1894).
85. See Cotting v. Kan. City Stockyard Co., 183 U.S. 79, 84 (1901) (opinion of Brewer, J.,
acknowledging that he was abandoning his assault on Munn).
86. Chi., Burlington & Quincy R.R. Co. v. Illinois, 200 U.S. 561, 596–601 (1906); Chi.,
Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 259–63 (1897). In a few other cases, he joined
in another Justice’s dissent, as in Lawton v. Steele, 152 U.S. 133, 144 (1894) (Fuller, C.J., dissenting),
or else dissented without opinion, as in Eldridge v. Trezevant, 160 U.S. 452, 469 (1896).
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Justice who was quite sensitive to the need to grant considerable
latitude to the states.”87
Any effort to characterize Brewer as a resolute opponent of the
police power on ideological grounds cannot be squared with his overall
record between 1890 and 1910. In cases involving challenges to state
regulatory authority on any constitutional basis—the Fourteenth
Amendment, the Contracts Clause, the Commerce Clause—Brewer
approved of the state’s regulatory efforts almost 80% of the time. In
739 cases, Brewer sided with the state 589 times, and those were, of
course, cases in which the private parties seeking to overturn state
regulation viewed themselves as having a sufficiently likely chance of
prevailing to warrant the cost of litigating all the way to the U.S.
Supreme Court.88 The Supreme Court as a whole upheld the state in
83.8% of these cases, making Brewer only slightly more “opposed” to
the police power than the Court as a whole.
In fact, of the twenty Justices who sat on the Fuller Court, nine
sided with private parties more frequently than Brewer (who sided
with the private party in 20.6% of cases). Included in this group were
longtime colleagues Stephen Field (23.9%), John Marshall Harlan
(23.5%), Edward White (21.4%), and Henry Billings Brown (20.6%).
Brewer was most likely to find regulatory legislation unconstitutional
when federal rather than state regulation was at issue, although here
also his overall voting record shows that he sided with the federal
government in a slight majority of cases.89
Moreover, efforts to characterize Brewer as a defender of
corporate interests either ignore, or are ignorant of, Brewer’s regular
denunciations of excessive corporate power in his on- and off-thebench writings. Throughout his career, Brewer repeatedly expressed
concern about the growing power of large business enterprises in
American society. In 1880, while a judge on the Kansas Supreme Court,
he publicly called for a new state constitution so that his adopted state
would be better able to deal with “gigantic corporations [that] are
accumulating great properties, and will soon be found wrestling for
87. SEMONCHE, supra note 1, at 119.
88. The statistics in this paragraph are taken from a detailed study of Brewer’s voting
patterns in cases involving constitutional challenges to state and federal regulatory activities.
Hylton, Conservative Justice, supra note 11, at 48.
89. Id. at 48–50 (discussing Brewer’s voting patterns in federal cases). While Brewer was
reluctant to recognize the expansion of federal legislative power—opposing it in almost half of the
cases—Edward Purcell has argued persuasively that Brewer strongly supported the expansion of
federal judicial power, a position that was consistent with his faith in the ability of judges to
mediate constitutional disputes. PURCELL, supra note 62, at 38–63.
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political power and control.”90 He decried the “accumulated fortunes” of
the day as a “danger to all free institutions and a menace to popular
government,” and he was an early critic of the Standard Oil monopoly.91
As a state and federal court judge in Kansas, he compiled an extensive
record of upholding state regulatory legislation in the face of constitutional claims of corporate appellants, and in 1889, newspapers as
diverse as the New York World and the Burlington, Iowa, Hawkeye
endorsed his nomination to the Supreme Court on the ground that he
was a judge who had refused to accede to the wishes of corporations and
monopolies.92
While a U.S. Supreme Court Justice, he characterized corporate
action as “often selfish, remorseless, and cruel” and branded efforts to
“crush out opposition” violations of “the first principles of the
Declaration of Independence.”93 He favored granting the states great
leeway to tax large national corporations, and he regularly supported
prosecutions under the Sherman Antitrust Act, casting the crucial fifth
vote for the government in the landmark cases United States v. TransMissouri Freight Ass’n.94 and Northern Securities v. United States.95 In
90. David Josiah Brewer, Constitutional Convention, 3 W. HOMESTEAD 70 (1880), quoted in
Lardner, supra note 9, at 127.
91. David Josiah Brewer, The Scholar in Politics, TOPEKA DAILY CAPITAL, June 13, 1883,
quoted in Lardner, supra note 9, at 128. He expressed his antipathy to the practices of Standard Oil
in Burlington, Cedar Rapids & N. Ry. Co. v. Nw. Fuel Co., 31 F. 652, 657 (C.C.D. Minn. 1887).
92. See, e.g., Chi., Burlington & Quincy R.R. Co. v. Dey, 38 F. 656, 662 (C.C.S.D. Iowa 1889)
(upholding power of the board of railroad commissioners to determine reasonableness of rates); State
v. Kan. City, Ft. Scott & G. R.R. Co., 32 F. 722, 725 (C.C.W.D. Mo. 1887) (upholding state legislation
requiring railroad companies to erect a depot at crossings); National Water-Works Co. of N.Y. v. City
of Kansas, 28 F. 921, 923 (C.C.W.D. Mo. 1886) (upholding state legislation allowing regulation over
the operation of water-works companies); Missouri v. Bell Tel. Co., 23 F. 539, 540–41 (C.C.E.D. Mo.
1885) (requiring telephone company to permit communication to companies other than those
permitted by its license from the patentee); Sherman v. Anderson, 27 Kan. 333, 335–36 (1882)
(upholding state legislation requiring railroad to fence railroad tracks to keep out cattle); Kan. Pac.
Ry. v. Mower, 16 Kan. 573, 575 (1876) (upholding state legislation concerning the killing or
wounding of stock by railroads); State v. Comm’rs of Nemaha County, 7 Kan. 542, 549 (1871)
(opposing in dissent writ of mandamus of the railroad to compel commissioners to issue bonds). For
the newspaper endorsements, see undated newspaper clippings in the Brewer Family Papers.
93. David Josiah Brewer, Some Thoughts About Kansas, 12 KAN. BAR ASS’N REP. 61, 69 (1895);
David Josiah Brewer, Address to the Association of Agents of the Northwestern Mutual Life
Insurance Company (1908) (on file with Yale University in the Brewer Family Papers, box 5,
folder 186). For an elaboration of Brewer’s dislike of the predatory practices of large corporations, see
David Josiah Brewer, Organized Wealth and the Judiciary, 57 INDEP. 301, 301–03 (1904), and David
Josiah Brewer, Our National Opportunities (Nov. 28, 1907), reported in Protect Everybody, Brewer,
N.Y. TIMES, Nov. 29, 1907, at 14.
94. 166 U.S. 290, 312 (1897).
95. 193 U.S. 197, 331 (1904). Other cases in which Brewer voted to uphold prosecutions under
the Sherman Act include Swift & Co. v. United States, 196 U.S. 375, 396 (1905); Montague & Co. v.
Lowry, 193 U.S. 38, 46 (1904); and Addystone Pipe & Steel Co. v. United States, 175 U.S. 211, 241
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1903, he actually was criticized by the New York Sun for being too
harsh in his criticism of corporate efforts to influence legislative
behavior.96
Brewer certainly was concerned about the protection of
property rights, but to characterize him as an unrelenting advocate of
corporate interests or as a doctrinaire ideologue is to ignore what
actually happened during his twenty years on the Supreme Court.97
V. BREWER’S APPROACH TO DECIDING CASES
Disproving the claims of Brewer’s detractors reopens the
question of Brewer’s significance in the history of the Supreme Court.
If he was not the preeminent defender of property rights and the
interests of corporations, what was his significance? If he was a
central figure on the Supreme Court for more than two decades—
which he was—and if his constitutional views were not necessarily
extreme or highly objectionable, why is it that so little attention has
been paid to his career and even less to his opinions?
First of all, few of Brewer’s opinions are counted among the
landmark decisions of American constitutional law. A list of ten
“noteworthy” Brewer opinions compiled in 2006 by Kermit Hall
included four of his dissenting opinions98 plus majority decisions in
Reagan v. Farmers’ Loan & Trust Co.,99 In re Debs,100 Kansas v.
Colorado,101 Muller v. Oregon,102 Berea College v. Kentucky,103 and
Keller v. United States.104 Except for Muller, in which Brewer upheld
the constitutionality of a statute setting maximum hours for women
workers, these opinions generally are viewed as being on the wrong
side of history, either deferring too excessively to state authority
(Kansas v. Colorado, Berea College, and Keller), being too hostile to
(1899). The principal case in which Brewer exhibited his approval of state taxation of national
corporations was Adams Express Co. v. Ohio State Auditor, 166 U.S 185, 225 (1897).
96. The New York Sun’s criticisms were reprinted in the WICHITA EAGLE, Nov. 26, 1904, at
1 (on file with Kansas State Historical Society, Topeka, Kansas).
97. In a recently published article that focuses primarily on the better known cases of the
Fuller Court, William Wiecek reaches a similar conclusion regarding the complex character of
Brewer’s constitutional views and his decisions in actual cases. Wiecek, supra note 11, at 183.
98. For this list, see BIOGRAPHICAL ENCYCLOPEDIA OF THE SUPREME COURT 73 (Melvin
Urofsky ed., 2006).
99. 154 U.S. 362 (1894).
100. 158 U.S. 564 (1895).
101. 206 U.S. 46 (1907).
102. 208 U.S. 412 (1908).
103. 211 U.S. 45 (1908).
104. 213 U.S. 138 (1909).
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state regulation of private business (Reagan), or being too insensitive
to the interests of organized labor (Debs). (The four dissenting
opinions echo similar themes.105) Such opinions are not truly
characteristic of Brewer’s overall record on the Court. One also could
argue that such a list should include Brewer’s concurring opinion in
Northern Securities Co. v. United States106 (which for all practical
purposes injected the “rule of reason” into the Court’s Sherman Act
jurisprudence) and his majority opinion in Church of the Holy Trinity
v. United States107 (which may well be Brewer’s best-known opinion
because of its assertion that the United States is a “Christian nation”).
However, it is certainly true that a compilation of the Supreme Court’s
most influential opinions, even limited to those of the Fuller Court
era, would include very few opinions by David Brewer.
While the small number of significant David Brewer opinions
helps explain the lack of attention his career has received, it only
rephrases the question: Why did David Brewer write so few significant
opinions when he was on the Court for so long? Why didn’t Chief
Justice Fuller, to whom Brewer was personally quite close throughout
his years on the Court, assign more significant cases to Brewer? The
answer most likely lies in Brewer’s failure to articulate a theory of
constitutional interpretation that relied on anything more than the
Justice’s intuitive sense of what was constitutional and what was not.
Although Brewer clearly had strong constitutional values, he rarely
devoted much of his time to translating his views into tightly reasoned
constitutional doctrine.
For Brewer, the key to interpreting the U.S. Constitution lay in
a set of very broad principles. First, the United States had been
founded as a Christian nation, and its laws and institutions had to be
understood in that light.108 Second, Brewer believed that the right of
moral self-development was a God-given right, the facilitation of
which was one of the central purposes of government. Laws that
encouraged moral self-development were legitimate; those that
impeded it were not. (In this regard, Brewer was greatly influenced by
105. United States v. Sing Tuck, 194 U.S. 161, 170–82 (1904) (Brewer, J., dissenting)
(standing against the majority on behalf of racial minorities); Giles v. Harris, 189 U.S. 475, 488–
93 (1903) (Brewer, J., dissenting) (standing against the majority on behalf of racial minorities);
Champion v. Ames, 188 U.S. 321, 364–75 (1903) (Fuller, J., dissenting) (allying Brewer with the
advocates of state power against federal power); Leisy v. Hardin, 135 U.S. 100, 125–60 (1890)
(Gray, J., dissenting) (same).
106. 193 U.S. 197, 360–64 (1904) (Brewer, J. concurring).
107. 143 U.S. 457, 471 (1892).
108. Green, supra note 11, at 450–51; Hylton, Christian Constitution, supra note 11, at 422;
Przybyszewski, supra note 11, at 472–73.
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his Yale professor the Reverend Theodore Dwight Woolsey.109) Brewer
believed that support for moral self-development justified laws against
vice but otherwise weighed against legislation that was too
paternalistic. Moral development was the product of free choice, and a
state that told its citizens what to do and what not to do actually
hampered its citizens’ moral self-development. Rights of property were
important because they provided an independent foundation upon
which moral self-development could occur.
Third, the link between the religious and moral foundations of
the state and its constitutional law was recognized by the founding
documents of the American Republic, although the initial
incorporation had been incomplete. The Declaration of Independence
had recognized the Christian rights of life, liberty, and the pursuit of
happiness (and property), but the original state constitutions and the
U.S. Constitution of 1789 had been defective, in Brewer’s view,
because they had provided only partial protection for such rights. That
problem had been corrected, Brewer believed, by the Fourteenth
Amendment, whose guarantees of the privileges and immunities of
citizenship, due process of law, and the equal protection of the laws
brought the protections of the Declaration of Independence back into
the Constitution.
Finally, apart from the recognition of a need for a national
constitutional principle to protect citizens from excessive
governmental paternalism, Brewer viewed American federalism from
a Jeffersonian states’-rights perspective. The state, not the national
government, was ordinarily the sovereign that mattered, and the
powers of the national government were to be strictly construed.
Although Brewer joined the Republican Party in the mid-1850s, it was
the Grand Old Party’s antislavery views that attracted him and not its
affiliations to Hamiltonian constitutional theories.
For Brewer, the primary role of the judge was to ensure that
these fundamental principles were honored by legislatures. Not every
exercise of the police power was illegitimate, and it was the role of the
judge to determine when the line had been crossed. Whether the case
involved the Contracts Clause, the Commerce Clause, the Fourteenth
Amendment, or some other provision of the Constitution, the judge’s
job was to distinguish between the legitimate and illegitimate exercise
of state power. However, because these fundamental principles were
broad and the variety of situations to which they applied was
immense, the effect of their application to any particular situation was
109. The following discussion of Brewer’s views in regard to deciding cases is based on
Hylton, Conservative Justice, supra note 11, at 55.
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not clear. For Brewer, such decisions were to be made on what was
essentially a case-by-case basis. The key to such distinctions was the
good sense of the judge and his appreciation of constitutional values
rather than the application of some specific analytical formula.
In deciding constitutional cases, David Brewer evaluated the
record and the arguments of counsel in light of these larger principles.
“Lesser” constitutional principles were of no particular use because all
decisions had to be justified in light of the larger principles.
Consequently, David Brewer never developed a formula for
distinguishing between acceptable and unacceptable restraints on
interstate commerce even though he participated in dozens of cases in
which this was the central issue. The same was true for what
constituted an impairment of the obligations of contracts or a denial of
due process. Anticipating Justice Potter Stewart’s observation about
pornography, David Brewer “knew an unconstitutional use of the
police power when he saw one,” but he was never able to define
precisely what made it so.110 Although his judicial opinions contained
numerous citations to authority, his references were usually to earlier
pronouncements of general principles rather than to more specific
constitutional standards applicable to the case at hand.
For example, Brewer believed that occupational liberty—the
right to choose a lawful occupation and to negotiate the terms of
employment—was protected by the Fourteenth Amendment. Although
he celebrated this right on numerous occasions, he also acknowledged
that under certain circumstances the right could be qualified. What
Brewer never developed was a formula—other than his own
intuitions—for distinguishing between the legitimate and illegitimate
regulation of occupational liberty. On the one hand, he was part of the
liberty of contract majorities in Lochner v. New York111 (which
involved state limitations on the numbers of hours that bakers could
work) and Adair v. United States112 (the yellow dog contract case). He
defended the correctness of the Lochner opinion in his public
addresses and articles,113 and he dissented in a number of cases in
which the Supreme Court upheld state restrictions on the employment
relationship.114 In all of these cases, Brewer presumably found that
110. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
111. 198 U.S. 45, 53 (1905).
112. 208 U.S. 161, 172 (1908).
113. E.g., David Josiah Brewer, The Legitimate Exercise of the Police Power in the Protection of
Health, 21 CHARITIES & COMMONS 238 (1908).
114. See McLean v. Arkansas, 211 U.S. 539, 551 (1909) (requiring miners paid on the basis of
coal mined to be paid on the basis of the weight of the coal before screening); Atkin v. Kansas,
191 U.S. 207, 224 (1903) (limiting hours for public works employees); Knoxville Iron Co. v.
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the challenged restrictions were unreasonable as a constitutional
matter; however, in each case, he simply dissented without opinion.
On the other hand, in Muller v. Oregon,115 he upheld for the
Court an Oregon statute restricting the number of hours that women
could work in a week, brushing aside the argument that the issue
previously had been resolved in the Court’s Lochner decision. For
Brewer, the principles that guided the moral self-development of men
did not necessarily apply in the same way to women. The difference
between men and women could justify a different judicial result even
when a challenged statute was otherwise identical to the one in
Lochner. But such distinctions were not limited to gender. A few years
earlier, in his majority opinion in Patterson v. The Bark Eudora,116
Brewer rejected a liberty of contract challenge to an act of Congress that
prohibited the advance payment of seamen’s wages. (The statute was
designed to prevent ship owners from entrapping sailors into
disadvantageous contracts by advancing them wages during vulnerable
moments.) Restraints on occupational liberty were justified in such cases
because sailors, like women, had been demonstrated to be a vulnerable
group. In other cases, he voted to uphold an Arkansas statute that prescribed the way in which back wages were to be paid to discharged
railroad workers, and he joined a unanimous court in upholding a
congressional act that imposed a maximum eight-hour day for workers
employed on federal public works projects.117 He also had no problem
with the phenomenon of occupational licensing or the outright
prohibition against convicted felons entering certain professions.118
What was the difference in the legislation in these two groups of
cases? In the former cases, Brewer believed that the regulations were
unreasonable, and in the latter he felt that they were not. For an
explanation as to how the distinction was to be made, Brewer offered
only that in some situations workers needed the protection of the state
and in other situations they didn’t. He also seemingly changed his mind
on certain issues; for example, in spite of his earlier positions, he
Harbison, 183 U.S. 13, 22 (1901) (prohibiting the payment of wages in scrip rather than cash);
Holden v. Hardy, 169 U.S. 366, 398 (1898) (upholding working hours limitations of individuals
engaged in the ultra-hazardous activity of underground mining).
115. 208 U.S. 412, 419 (1908).
116. 190 U.S. 169, 174 (1903).
117. Ellis v. United States, 206 U.S. 246, 255–56 (1907); St. Louis, Iron Mountain & St. Paul
Ry. Co. v. Paul, 173 U.S. 404, 410 (1899).
118. See Hawker v. New York, 170 U.S. 189, 196 (1898) (affirming the defendant’s conviction
for the unlawful practice of medicine based on his treating an individual after having been
convicted of a felony, finding the statute required that one who had violated the state’s criminal
laws “should be deemed of such bad character as to be unfit to practise medicine”).
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eventually supported the constitutionality of hours restrictions on
workers in ultrahazardous settings and on public works projects.119
A full understanding of Brewer’s thinking on constitutional
questions also is hampered by his tendency to dissent without opinion
in constitutional cases. This was particularly true of his dissents in
labor cases. In Holden v. Hardy,120 Knoxville Iron Co. v. Harbison,121
Atkin v. Kansas,122 and McLean v. Arkansas123 (all discussed above),
he offered no explanation whatsoever for the grounds of his
disagreement with the majority.
One of his most intriguing dissents, and one that could have
given him the opportunity to explain how to draw the line between
claims of individual liberty and state regulatory authority, was his
dissent in the 1905 case of Jacobson v. Massachusetts.124 Jacobson
involved a state statute requiring adults to be vaccinated for smallpox.
The plaintiff, who claimed to have a special allergy to the smallpox
vaccine, insisted that the statute was an unconstitutional offense
against individual liberty. By a vote of 7-2, the Supreme Court
disagreed and upheld the statute. Brewer, along with Rufus Peckham,
dissented, but once again, they did so without opinion.
Brewer’s written opinions tended to be relatively pro forma
documents. Brewer typically began his judicial opinions with a
summary of the facts and a declaration of platitudes, after which he
often inserted a series of quotations from other opinions from a variety
of jurisdictions. The precise relevance of the quotations was not
always clear, but after the citations, he usually moved to a conclusion
regarding the reasonableness or unreasonableness of the challenged
law or activity or the appropriateness of the Court’s jurisdiction. When
Brewer wrote to uphold a statute or municipal ordinance, he usually
went to some length to explain why the law was reasonable; if he
found it to be unconstitutional, he usually treated the matter as selfevident.125 When he chose to write a dissenting opinion, his remarks
usually were characterized by what might be called courteous outrage.
119. In Brewer’s 1908 essay, The Legitimate Exercise of the Police Power in the Protection of
Health, supra note 113, at 239–40, he specifically endorsed the holding in Holden v. Hardy from
which he had dissented a decade earlier. Brewer’s concurrence in Ellis v. United States, 206 U.S.
246, 260 (1907), also indicates a change in mind on the public works issue.
120. 169 U.S. 366 (1898).
121. 183 U.S. 13 (1901).
122. 191 U.S. 207 (1903).
123. 211 U.S. 539 (1909).
124. 197 U.S. 11 (1905).
125. See Muller v. Oregon, 208 U.S. 412, 422–23 (1908) (upholding the constitutionality of
state restrictions on the working hours of females, describing the historical enactment of
protective legislation for women); Patterson v. Bark Eudora, 190 U.S. 169, 178–79 (1903)
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Brewer’s approach to opinion writing was not that different
from his approach to public speaking. His opinions were
straightforward, though at times a little wordy, and crafted in such a
way as to grab and hold the attention of a general audience. Although
such an approach produced quotable maxims—“The paternal theory of
government is to me odious”; “Looking Backward is nearer than a
dream”; “The government of the Union, then, is, emphatically and
truly, a government of the people”; and “This is a Christian
Nation”126—the approach was unlikely to produce opinions that were
of important precedential value or likely to be of interest to future
judges and constitutional scholars.
At the time of his death, the New York Times described
Brewer’s lecture style as a product of “straightforward thinking” and
“plain but always courteous speaking.”127 His judicial opinions
reflected a similar approach. They were uncomplicated and easy to
follow, but they rarely showed an appreciation of, or interest in,
constitutional subtleties. The same New York Times article further
noted that “[h]is lectures and casual addresses showed that he had
thought much, studied much, but had been spoiled by neither
process.”128 One easily could make the same observation in regard to
his judicial opinions. In deciding cases, Brewer avoided the nuances of
constitutional law or constitutional interpretation, and his opinions
rarely were burdened with too much learning or analysis.
Was there a connection between David Brewer’s relatively
perfunctory approach to opinion writing and his extensive off-thecourt activities? Perhaps there was. No one ever accused Brewer of
shirking his duties as a Justice, and the clerk of the court’s record
book reveals that he was almost always present in the courtroom
when the Court was in session.129 The volume of his opinions, if not
the quality, also demonstrates that he carried his part of the Court’s
(holding that it was not beyond the power of Congress to enact legislation, applicable to both
American and foreign vessels, which made it unlawful to pay any seaman wages in advance).
126. See, e.g., Budd v. New York, 143 U.S. 517, 551 (1892) (Brewer, J., dissenting) (“The
paternal theory of government is to me odious.”); id. (“ ‘Looking Backward’ is nearer than a
dream.”); In re Debs, 158 U.S. 564, 578 (1895) (“The government of the Union, then, is,
emphatically and truly, a government of the people.”); Church of the Holy Trinity v. United
States, 143 U.S. 457, 471 (1892) (“[T]his is a Christian nation.”).
127. Justice Brewer, supra note 14, at 10.
128. Id.
129. Journal of the Supreme Court of the United States (1890–1910). The one period of time
in which Brewer was frequently absent was in 1896 when his service on the Anglo-Venezuelan
Boundary Commission and the death of one of his daughters in Kansas required him to be away
from Washington. See Hylton, Judge Who Abstained, supra note 11, at 341–44 (describing the
reasons for Brewer’s abstention from the Plessy v. Ferguson decision).
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load. Perhaps if Brewer had devoted more of his free time to his
judicial duties, he might have become a more sophisticated
constitutional thinker. However, that individual would have been an
entirely different person from David Brewer.
David Brewer was a significant figure in the history of the
Supreme Court, and he played an extremely important role in the
public life of his era. His career offers an intriguing case study of how
the “liberal” ideals of one generation play out over the course of a
subsequent generation characterized by profound cultural and
political changes. He was not, however, a sophisticated constitutional
thinker; once citations to precedent and the language designed for
popular audiences were subtracted, his opinions were rarely more
than just votes on the outcomes of cases. When Alan Westin called
Brewer “the William O. Douglas of the Right,” he probably was
referring to the political views of the two Justices, but the midtwentieth-century liberal maverick and Brewer also shared a similar
approach to deciding cases and writing judicial opinions.130 As
Douglas’s once lofty reputation continues to fade, the comparison
becomes even more apt.131
The reasons for Brewer’s current obscurity reveal a great deal
about why some Supreme Court Justices are remembered long after
their service on the Court and why others, equally prominent in their
own times, are forgotten. The features that made David Brewer a
popular public speaker and the best-known Supreme Court Justice of
his era were also the features that limited his influence on the
development of constitutional principles. Justice Brewer became a
neglected Justice after his death because, at least in the realm of
formal constitutional law, he chose to emphasize results over
explanations. As a result, he actually had surprisingly little to say.
130. WESTIN, supra note 46, at 24.
131. On Douglas, see G. EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES OF
LEADING AMERICAN JUDGES 317–68 (3d ed. 2007) (describing Douglas’s thirty-six years on the
Supreme Court, with particular attention given to Douglas’s autobiographical account of his life).